Wendy Bacon has more media knowledge than most - but it didn't help when she was recently savaged by News Ltd. Do errors of fact mark the limits of free speech?

OPINION: On Saturday 10 March, I was startled to see my photo on the Weekend Australian’s front page, beside the words: "What is wrong with Journalism?"

This drew my attention to a story by Cameron Stewart, titled Finkelstein Report: Media’s Great Divide. This was the lead story in the Inquirer, the paper’s feature section. I was even more surprised when I found the editorial mentioned me as well, providing an inaccurate version of an old 1971 obscenity case and accusing me of now supporting government censorship. All this was on top of a Cut and Paste feature earlier in the week, which had published what appeared to be "facts" from a 1981 judgement to suggest that Finkelstein should not have relied on my media research in his report.

I was left with no doubt that the editor-in-chief of The Australian was angry with me and some other journalism academics, several of whom either assisted with the Finkelstein inquiry, gave tentative support to its recommendations or otherwise dared to suggest its 400-page report should be seriously considered. News Ltd and much of the rest of the media were exercising their freedom of speech to campaign to sideline the report, portraying it as an outrageous attack on free speech.

There is nothing, of course, wrong with campaigning journalism, so long as it doesn’t overwhelm reporting the truth and fair and accurate reporting.

My own involvement was to write a story for New Matilda outlining the findings of the Finkelstein report in an effort to overcome the misleading media hysteria that had enveloped it. I had written two submissions for the report which can be found here and here. My submission suggested a self-regulatory Media Council across all media, independent of government and industry. In my model, small news media operators could join the council voluntarily as a means of providing a complaints mechanism for their audience and as evidence that they could be held accountable to basic standards of reporting.

The editor-in-chief, Chris Mitchell, was quoted in Stewart’s article as saying:

"Interestingly, the Finkelstein report did not really get its critical anecdotes on alleged problems in political reporting right, as (Media Watch host) Jonathan Holmes pointed out on The Drum during the week. Most senior working journalists know (academics) Margaret Simons, Wendy Bacon and others have been factually wrong on many of these issues. The media studies class is so infected with postmodernism, facts no longer matter to it.

"I urge readers to Google the political backgrounds of the academics in the Finkelstein report. It will be an eye-opener for many readers and for many young journalists."

Comment not sought
None of the examples Holmes used on Media Watch were by Crikey contributor and Melbourne University academic Margaret Simons or myself. We were not asked for comment. I am not aware of factual errors, nor have they been brought to my attention.

I have no wish to stop media referring to my past but not in ways that are inaccurate, unfair, misleading and designed to undermine my credibility. Between 1970 and 1979, I was arrested and spent short periods in Mulawa Women’s Prison on a number of occasions. This occurred as a result of my involvement in anti-censorship, prison reform, environmental and anti-police corruption campaigns. I was refused admission to the bar in 1981.

I wrote about these experiences in the Fairfax media (of which I have been a employee or contributor since 1983) in 2003 after Chester Porter, the senior counsel who appeared against me in the admission case said that he had concerns about the case. In his book, Porter notes: "Her strictures about various police officers, including my client Roger Rogerson, were to say the least, courageous, much more so than most of us realised." In an Overland essay last year, I discussed my early censorship battles and confirmed by continuing opposition to censorship.

So what to do when you believe you have been unfairly and wrongly attacked by the media? Are journalists sufficiently accountable for errors? This was one of the key issues faced by Finkelstein when he took on the media inquiry. I decided to explore my own situation as a test case.

Sue them! was the message from some journalists.

As a practising journalist and teacher of media law, I know that it is defamatory to publish material which damages a person’s professional reputation. If you are going to do it, you need to be able to prove it is true. I don’t have a reputation for making factual errors - let alone with "most senior journalists".

The trouble is that I don’t believe in journalists threatening to sue for defamation. It’s not that I believe that people should never sue but it’s hard to do so unless you have free lawyers or a lot of money. Defamation laws privilege the wealthy.

Common tactic
One common tactic is to arrange for a lawyer to issue a letter threatening to sue which is what Chris Mitchell did when University of Canberra academic Julie Posetti tweeted something about his approach to climate change reporting which he claimed was untrue. Posetti denied the allegations and said she felt bullied. Used in this way, defamation threats stifle free speech.

Editors are wary of some people because they are litigious. The difficulty of not being litigious is that you can come to be seen as "fair game".

If you don’t want to sue, there are three options for complaint about a print publication. You can complain to the publication itself, to the Media Arts and Entertainment Alliance or to the Australian Press Council. In this case, the MEAA was not an option as editors are rarely union members.

The average time taken to process a Press Council complaint is three months. But in a situation like this you need speedy action. If you do approach the Press Council, it initially considers whether it will accept your complaint. If you haven’t already approached the media organisation, the Council will likely suggest that you do so before it considers your complaint. So it’s quicker to do that yourself.

I emailed a letter for Chris Mitchell explaining my complaint and asking for a correction to be published. The requested correction referred to the offending paragraph in Stewart’s article and partly read:

"The Australian acknowledges that ABC’s Media Watch in its critical coverage of examples used in the Finkelstein report was not referring to any research material supplied by Wendy Bacon to which Finkelstein also referred in his report. The Australian also acknowledges that contrary to what The Australian has suggested Wendy Bacon is still a practising journalist who has a strong record for factual accuracy and is highly regarded by her peers."

"The Australian also acknowledges that there is no evidence that Wendy Bacon supports government censorship or state suppression of freedom of speech … Part one of Wendy Bacon’s submission to the Finkelstein Inquiry in a section setting out her views on solutions to the current weaknesses in accountability, reads: ‘An independent (of owners and government) self-regulatory framework which ensures that media and journalists claiming rights under shield or privacy laws to investigate and hold power accountable be themselves accountable, especially in relation to the pursuit of truth’.

"Wendy Bacon… has never espoused the intellectual position of postmodernism and has consistently argued both to her students and publicly, the importance of evidence and factual truth in journalism."

Truth distorted
Mitchell quickly responded saying that he would publish a letter prominently the following day if I rewrote the statement as a letter. I responded again saying that I had been defamed, and the truth distorted: "If you recklessly publish false statements about people, you need to correct them. A letter from me is not the same as you acknowledging your errors."

Mitchell repeated his offer of a letter and repeating my preference for a correction, I sent in a letter. This was passed onto a letters’ editor who edited it from 400 words to 266 which was the maximum allowed. Some crucial points were missing including my assertion that I had been defamed. So I submitted a reedited 266-word version, saying not to change it without my express permission.

With only minor changes, my letter appeared on Saturday under the heading: "A strong record of factual accuracy says journalism academic". However, Mitchell took the unusual step of asserting his own right of reply by including a paragraph under my letter: "Cameron Stewart’s feature and the editorial (10-11/3) accurately reported Bacon’s submission to the inquiry and incidents from her colourful career that are matters of public record. The editor-in-chief stands by his comments."

Stewart’s article had included a quote from my submission but that was not what I was complaining about. I was not complaining about the incidents in my past being mentioned, but that the reports were inaccurate and misleading.

So is this an adequate right of reply? Readers will judge for themselves.

The more important question is that if this is the best that I can do with legal and journalism knowledge, and editing skills, how do those with little media knowledge and money fare? As the Press Council’s Julian Disney told the Finkelstein inquiry, it is more difficult for ordinary people to deal with complaints against the media than people such as prominent News Ltd critic and Latrobe university professor of politics Robert Manne.

In 2009, the Press Council issued a guideline setting out what might be considered an adequate response to what it acknowledged was a "vexed" issue for the press. Where it is established that a serious inaccuracy has been published, publications are supposed to promptly correct the errors. Letters to the editor are not always adequate as readers often feel — as I did — that the publication should correct their own errors. If I take the complaint to the Press Council, one of the issues will be whether Mitchell has failed to "neutralise" the damage by having the last word with his paragraph responding to my letter.

News Ltd practices
Underlying all this are more general concerns about News Ltd reporting practices which I raised in my submission. I was surprised that Stewart saw no need to either ask Mitchell to provide evidence for his accusation or to contact me for a response. In a short email to Chris Mitchell which he forwarded to me, Stewart wrote:

"My reported piece had only a brief reference to Wendy — a few quotes from her inquiry submission about her attitude to free speech. It was not a critical reference at all. Her comments to the inquiry which I used in the piece were self-explanatory and there was no need to go to her for extra comment. I made no comment in relation to her view on the statutory authority. As a journalist I am not expected to seek rights of replies to comments made in an editorial or in a column like Cut-and-Paste. I think, with all due respect, that Wendy is mixing up reported journalism with editorials."

I am not confusing "reported journalism with editorials" — although Stewart’s use of his editor as a primary source in his reportage certainly blurs that line. I had no reason to think that Stewart was involved with the editorial or the Cut and Paste. However he does, through a direct quote from Mitchell, allege that I regularly get facts wrong — without giving me right of reply. Perhaps he believes that if you are quoting someone else, you do not need to seek a response. I asked Stewart this, but he declined to answer any more questions.

When public discussion descends into attacks on individuals the effect on free speech is chilling. This was a concern I raised in my submission to the Finkelstein inquiry. For instance, our Australian Centre for Independent Journalism research on climate change found that some opinion writers had been accusing climate scientists of dishonesty and fraud. These are statements of fact to which no right of response is granted.

In my submission, I asked: If we have moved into an era in which journalism has changed to become more overtly opinionated, does this leave one or two companies with an unacceptable level of media power? Are standards in practice subject to a simple test — anything goes so long as there is an audience for it? If so, why have standards at all?

Like most people, including journalists, I oppose state censorship. Our freedom of speech is too constrained in Australia. We are one of the few Western democracies without constitutional protection for freedom of expression. But journalism is different from other speech. When you publish journalism you claim that "this is the truth" — as far as I have been able to establish following journalists’ ethics and conventions of professional journalism.

Being independent
As a reporter you quickly learn that sources are often driven by interests that can lead them to make false statements. You verify your facts, especially when people make negative statements about other people, and from a pragmatic point of view, this is especially necessary for defamatory statements. Even if you’re writing opinion, you need to verify your facts. It’s on this basis that journalists assert their right to ask questions, protect confidential sources and defend occasional privacy breaches, deceptive ways of gathering information and the publication of material that is otherwise defamatory.

Chris Mitchell and others are irritated that journalism academics have not all fallen into line with Big Media’s cry that any form of public involvement in media regulation is an attack on freedom of the press. But as academics and journalists, our job is to be independent.

Unlike some journalists, academic journalists are privileged in being able to express our views about the media freely. Hopefully our students learn that journalism is about more than bending to the will of media managers.

This article was first published in New Matilda and has been republished with permission.